HIH Workers Compensation (NSW) Pty Limited v GIO General Limited & GIO Workers Compensation [2001] NSWCC 48

Compensation Court of New South Wales

CITATION : HIH Workers Compensation (NSW) Pty Limited v GIO General Limited & GIO Workers Compensation [2001] NSWCC 48 HIH Workers Compensation (NSW) Pty Limited PARTIES : GIO General Limited GIO Workers Compensation (NSW) Ltd MATTER NUMBER(S) : 582 of 2000 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 08/11/00, 15/11/00, 27/02/01 DATE OF JUDGMENT: 02/27/2001

FOR APPLICANT:Mr M Batten instructed by John Sharpe LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr. C. Wynyard instructed by Abbott Tout

JUDGMENT: 2

1. In this matter I gave a judgment on 8 November 2000. The circumstances leading to that judgment are set out in it and I will not repeat them. I at that time directed that short minutes be brought in dealing with a number of issues, and indicated that if the parties could not agree upon all issues, I would determine outstanding questions. Short minutes have been brought in dealing with a number of the issues and I make orders in accordance with the short minutes of order initialled by me and placed with the papers. 2. There remain a number of outstanding issues. The first are what order should be made in respect of the notice of motion of the 19 February 1999 in Matter No 19420 of 1997. The first order is that on Mr Batten's application the notice of motion is withdrawn and dismissed. There remains the question of the order for costs that should be made in respect of that notice of motion. That order does not turn merely upon the question that the application has been withdrawn and dismissed. That is the formal order that is made. 3. In my view, however, each party should pay its own costs of that notice of motion and my reason is that whilst the notice of motion sought an apportionment under s 22 and s 22A of the Workers Compensation Act, as did the later substantive proceedings in which the decision was given, the affidavit material and other material placed before the Court right up until 29 February 2000 envisaged that an issue in the matter relating to the order that should ultimately be made would turn upon the conduct of the representative of the parties in Bega. In the event agreement was reached that the matter would proceed without reliance upon such conduct. However, it seems to me that for a number of reasons the respondent to these proceedings was entitled to deal with the issue on the basis that there was a conflict as to what had taken place and what should flow from it. I do not think it is appropriate to make an order for either party in respect to the costs of the notice of motion. 4. I then turn to the proceedings themselves which were commenced in Matter No 582 of 2000 seeking contribution. I can see no valid reason why the respondent, that is the 1st respondent, should not pay the applicant's costs of those proceedings. The proceedings were correctly brought as was held and determined. The Court had jurisdiction to make the order that was sought. The eventual findings upon the facts supported the making of the order. The respondent had every opportunity, had it wished to do so, to consent to the order - or to compromise it in some way - but it was contested. I think the order for costs should follow the event. 5. Mr Wynyard has urged upon me that had the applicant adopted a different course in Bega the costs would have been saved. I do not think that necessarily follows at all because, firstly, if the matter had simply been fought, it would have been a far more substantial piece of litigation than it was - that is the original claim. Secondly, even had the matter then turned purely to an argument about the question of contribution and been fully fought out, virtually the same issues as finally came to be resolved would have had to have been determined. 6. So that I make an order that the first respondent pay the costs of the applicant in Matter No 582 of 2000. 7. The more difficult question in my view is the application made by the applicant for the award of interest under s 109. Mr Batten has submitted that that section requires in effect that I make an order unless there is as a discretionary matter some disentitling conduct on the part of the respondent. I think that matter puts the question too high. There is a discretion at all relevant stages. It is simply that where somebody recovers money which they are entitled to and which they have been kept out of in the ordinary course of events they will be awarded interest unless there is some reason not to so award it. 8. In this case I think that the applicant should be entitled to interest as from 29 February 2000. Up until that point, for the same reason that I have dealt in respect of the question of costs, I think that the respondent was entitled to dispute its obligation to pay for grounds additional to those going to the issue which was eventually resolved against it. 9. Accordingly, I order that the 1st respondent pay interest at the prescribed rate to the applicant on the sum of $90,000 from 29 February 2000 until payment. 10. The costs of today should be regarded as costs in the cause in application number 582 of 2000. MR M BATTEN instructed by John Sharpe appeared for the applicant MR C WYNYARD instructed by Abbott Tout appeared for the respondent